Com. v. Crawford, C. ( 2016 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
CALVIN J. CRAWFORD,
Appellant No. 1039 MDA 2015
Appeal from the PCRA Order May 14, 2015
In the Court of Common Pleas of Dauphin County
Criminal Division at No(s):
CP-22-CR-0003323-2000
CP-22-CR-0003771-2000
BEFORE: BOWES, LAZARUS AND STRASSBURGER,* JJ.
MEMORANDUM BY BOWES, J.: FILED FEBRUARY 16, 2016
Calvin J. Crawford appeals from the May 14, 2015 order denying his
second PCRA petition. We affirm.
On June 6, 2001, a jury convicted Appellant of four counts of unlawful
delivery of a controlled substance and one count of possession with intent to
deliver a controlled substance. Pennsylvania State Trooper Timothy
Longenecker, while engaged in an undercover operation with the Dauphin
County Drug Task Force and the Swatara Township Police Department,
purchased cocaine from Appellant on four occasions. Appellant was arrested
while engaged in a fifth sale of the drug to the officer. The aggregate weight
of the drugs in question was 28.9 grams of cocaine. On October 18, 2001,
*
Retired Senior Judge assigned to the Superior Court.
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Appellant was sentenced to fourteen to sixty years imprisonment followed by
twenty years probation. His sentence was based, in part, upon application
of the mandatory minimum sentencing provision of 18 Pa.C.S. § 7508 due to
the weight of the drugs involved in each sale. On August 12, 2002, we
affirmed, Commonwealth v. Crawford, 809 A.2d 954 (Pa.Super. 2002)
(unpublished memorandum), and Appellant did not seek further review.
On December 11, 2002, Appellant filed a pro se PCRA petition, and
counsel was appointed. Counsel moved to withdraw pursuant to
Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc) and
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988). Counsel was
permitted to withdraw, and PCRA relief was denied. On appeal, we affirmed.
Commonwealth v. Crawford, 883 A.2d 686 (Pa.Super. 2004)
(unpublished memorandum).
On December 31, 2014, Appellant filed his second PCRA petition
claiming his sentence was invalid pursuant to Alleyne v. United States,
133 S. Ct. 2151 (2013).1 After issuing notice of its intent to do so, the PCRA
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1
In Alleyne, the United States Supreme Court held that any fact, other
than a prior conviction, that triggers application of a mandatory minimum
sentence must be proven beyond a reasonable doubt before the factfinder.
Section 7508 was held unconstitutional based upon Alleyne.
Commonwealth v. Mosley, 114 A.3d 1072 (Pa.Super. 2015); see also
Commonwealth v. Wolfe, 106 A.3d 800 (Pa.Super. 2014) (striking down
mandatory minimums imposed by 42 Pa.C.S. § 9718 on sexual offenses
based on age of victim), appeal granted, 121 A.3d 433 (Pa. 2015);
(Footnote Continued Next Page)
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court dismissed Appellant’s petition based on its unitimeliness. This pro se
appeal followed. Appellant raises these issues on appeal:
1. Did the Trial Court error [sic] in imposing the Mandatory
Minimum because it incorrectly found that 18 PA C.S.A. §7508
which permitted the Trial Court to find the Elements by a
Preponderance of the evidence was severable from the rest of
the statute deeming it unconstitutional. There was no meaningful
difference between submitting the elements to the Jury and
accepting a stipulation from the defendant since they both have
a purpose of finding a method to impose a Mandatory Minimum
sentence outside the Statutory framework, but consistent with
Alleyne.
2. Did the Trial Court err in not sentencing Petitioner to the
Aggregate Amount of Drugs involved in his case instead of the 5
sentences he was sentenced to consecutively and should the
Compulsory Joinder Rule be used to sentence the Petitioner.
3. Did the Trial Court err in giving the Defendant an
Excessive Sentence and fine for the amount of drugs involved in
his case.
Appellant’s brief at 6.
Initially, we note that our “standard of review of the denial of a PCRA
petition is limited to examining whether the evidence of record supports the
court’s determination and whether its decision is free of legal error.”
Commonwealth v. Smith, 121 A.3d 1049, 1052 (Pa.Super. 2015). Before
_______________________
(Footnote Continued)
Commonwealth v. Valentine, 101 A.3d 801 (Pa.Super. 2014) (holding
mandatory minimum imposed when defendant visibly possesses a firearm,
42 Pa.C.S. § 9712, invalid under Alleyne); Commonwealth v. Newman,
99 A.3d 86 (Pa.Super. 2014) (ruling mandatory minimum sentences for
certain drug offenses committed with a firearm imposed by 42 Pa.C.S. §
9712.1 unconstitutional).
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we proceed to the merits of Appellant’s contentions, we must determine
whether Appellant’s March 2, 2015 PCRA petition was timely filed as that
issue implicates our jurisdiction. Commonwealth v. Miller, 102 A.3d 988
(Pa.Super. 2014). If a PCRA petition is untimely, “neither this Court nor the
trial court has jurisdiction over the petition.” Id. at 992 (quoting
Commonwealth v. Seskey, 86 A.3d 237, 241 (Pa.Super. 2014)); see also
Commonwealth v. Chester, 895 A.2d 520, 522 (Pa. 2006).
Any PCRA petition, “including a second or subsequent petition, shall be
filed within one year of the date the judgment becomes final” unless an
exception to the one-year time restriction applies. 42 Pa.C.S. § 9545(b)(1).
Accordingly, we must ascertain when Appellant’s judgment of sentence
became final. “A judgment becomes final at the conclusion of direct review,
including discretionary review in the Supreme Court of the United States and
the Supreme Court of Pennsylvania, or at the expiration of time for seeking
the review.” 42 Pa.C.S. § 9545(b)(3). In this case, since Appellant did not
file a petition for allowance of appeal, Appellant’s sentence became final on
September 11, 2002, thirty days after our August 12, 2002 affirmance on
direct appeal. Appellant had until September 11, 2003, to file a timely PCRA
petition, and the present December 31, 2014 petition is untimely by over
eleven years.
There are three exceptions to the one-year time bar of § 9545:
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(i) the failure to raise the claim previously was the result of
interference by government officials with the presentation of the
claim in violation of the Constitution or laws of this
Commonwealth or the Constitution or laws of the United States;
(ii) the facts upon which the claim is predicated were unknown
to the petitioner and could not have been ascertained by the
exercise of due diligence; or
(iii) the right asserted is a constitutional right that was
recognized by the Supreme Court of the United States or the
Supreme Court of Pennsylvania after the time period provided in
this section and has been held by that court to apply
retroactively.
42 Pa.C.S. § 9545(b)(1)(i-iii). “Any petition invoking an exception provided
in paragraph (1) shall be filed within 60 days of the date the claim could
have been presented.” 42 Pa.C.S. § 9545(b)(2).
Herein Appellant claims that his PCRA petition is timely based on
“Newly Discovered Evidence based on the Constitutionality of his Mandatory
Sentences.” Appellant’s brief at 8. He then attempts to gain review of his
remaining two sentencing claims by bootstrapping them onto the supposed
timeliness of his Alleyne position. However, “Our Courts have expressly
rejected the notion that judicial decisions can be considered newly-
discovered facts which would invoke the protections afforded by section
9545(b)(1)(ii).” Commonwealth v. Cintora, 69 A.3d 759, 763 (Pa.Super.
2013) (citing Commonwealth v. Watts, 23 A.3d 980, 986 (Pa. 2011)
(“section 9545(b)(1)(ii) applies only if the petitioner has uncovered facts
that could not have been ascertained through due diligence, and judicial
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determinations are not facts”); Commonwealth v. Brandon, 51 A.3d 231,
235 (Pa.Super. 2012) (same)). Thus, Alleyne and the new Pennsylvania
case law examining the constitutionality of various mandatory minimum
sentencing provisions in this Commonwealth do not constitute newly-
discovered facts so as to fall within the parameters of § 9545(b)(1)(i).
We further observe that we have held specifically that, since Alleyne
has not been held to be retroactive by either our Supreme Court or the
United States Supreme Court, it does not fall within the newly-recognized
constitutional right exception to § 9545(b)(1). Miller, supra.
Having determined that the present PCRA petition was untimely, we
affirm the denial of PCRA relief.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/16/2016
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